The Lucknow bench of the Allahabad High Court modified a Railway Claims Tribunal judgment and ordered the railways to pay an additional compensation of Rs 8 lakh for the loss of an eight- or nine-month foetus who died along with the mother in an accident while boarding a train in 2018. In February last year, the tribunal had ordered the railways to pay Rs 8 lakh for the death of the pregnant woman.
In its order dated February 26, a bench of Justice Prashant Kumar said, “…an unborn child aged five months onwards in the mother’s womb till its birth can be treated as equal to a child in existence. The unborn child, who dies in the womb, can be held to be a ‘person’ who can be the subject of an action for damages for his death.”
The bench further stated, “Since the foetus is treated as a child, hence death of a foetus/child would be treated as an independent accident apart from the death of the mother. Thus, the claimants are also entitled to get the additional compensation of Rs 8,00,000 for the loss of foetus.”
The court was hearing a petition against a judgment of the Lucknow bench of the Railway Claims Tribunal, passed on February 18 last year. It ordered the railways to pay a compensation of Rs 8 lakh for the death of pregnant passenger, Bhanmati, but did not consider the loss of the foetus.
An accident while boarding a train
According to the petition, Bhanmati was boarding Marudhar Express at Barabanki railway station for travelling to Bandikui station in Rajasthan’s Dausa district on September 2, 2018. She had a second-class reservation ticket. While boarding the train, she fell from the train and sustained serious injuries.
Bhanmati was rushed to Barabanki district hospital, where she died during treatment. At the time of death, she was carrying a male foetus of about eight to nine months that passed away, the petition stated.
It further mentioned that the family members filed a claim petition before the tribunal on March 29, 2019. The tribunal concluded that the deceased Bhanmati was a bona fide passenger and the death had occurred by falling from the train while she was boarding the train. The accident clearly falls within the ambit of an untoward accident as defined under the relevant sections of the Railway Act, 1989, and accordingly, the tribunal granted a compensation of Rs 8 lakh in its order on February 18 last year.
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While the petitioner’s counsel quoted previous judgments regarding compensation for the loss of a foetus in an accident, the counsel appearing for the railways opposed the same, stating that since the unborn child is not included in the section, no compensation would be awarded to him. In support of the argument, the counsel also quoted a judgment and justified the tribunal for rightly rejecting the claim of the unborn child.
What the high court ruled
After hearing the submissions, the bench of Justice Prashant Kumar observed, “Human foetus to whom personhood could be attributed was also destroyed in the accident in the instant case; had the accident not occurred the unborn child would have survived and seen the light of the day.”
The court concluded, “The rights of the child in the mother’s womb are well protected by laws of the land as the foetus is another life in the pregnant woman and loss of foetus is actually a loss of child. Thus, this court has no hesitation in holding that an unborn child aged more than five months onwards in the mother’s womb till its birth is treated as equal to a child in existence.”
It further added that the unborn child is held to be a ‘person’ who can be the subject of an action for damages for his death. The appellants are, therefore, entitled to compensation for the loss of foetus, independently treating the foetus as a child, the court said.
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In its judgment, the bench ordered. “The judgment and award passed by the Railway Claims Tribunal, Lucknow Bench is modified to the extent that a compensation of Rs 8,00,000/- along with the same interest as awarded to the mother of the foetus shall further be awarded towards the death of the foetus, which was caused during the course of the accident as per schedule under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990.”
